December 6, 2011

It is only natural to adapt to unfavorable circumstances to better circumvent them. To do so even when one's conscience stands in the way is human.

The logic behind it, if not its consequences, is impeccable. If seeing is believing for instance, it follows that the ability to manipulate the perceptions of one's audience is highly desirable, does it not? And if one ignores one's conscience, who else is to condemn the deception?

The best remedy is to be cautious at all times. Photographs may prove better than eye-witnesses' faulty memories, yet everyone knows they are framed by design and so can be those unfortunate enough to be captured on film.

Allow me to take a text as an example. You will still get the picture. "Craigslist Used in Deadly Ploy to Lure Victims in Ohio" is the headline of a report filed by Erica Goode for the New York Times (*). "The scheme [is] so macabre that residents [...] are already speculating in when it will be turned into a movie script". Indeed, but pray why mention Craigslist by name at all?

The relevant facts are that victims were recruited using classified advertisements and that the fourth one at least "was hired and driven to [a] property in rural southern Ohio". Why spare the car manufacturer but tar Craigslist as implicitly complicit? Could it be that the New York Times bitterly resents how its own classified section and that of the Boston Globe, its subsidiary, have been savaged by Craigslist's more competitive offer?

Craigslist of course has been used by prostitutes to drum up business, at the risk of meeting with members of the vice squad or even murderers. When it reported how 40 state attorneys general pressed it into dropping its erotic services, the New York Times was acting in the public interest.

What if this made Craigslist a star and stars sell newspapers? Read Sarah Lyall on the British inquiry about the tabloid business. "Mr McMullan said that the public interest is what the public is interested in" (**). How more convenient can this reflexive definition be?

On the same beat, Salamander Davoudi, Ben Fenton and Helen Warrell quoted "Nick Davies, the Guardian journalist who exposed the scale of phone hacking at the News of the World" as having concluded "he no longer supported self-regulation of the press" (***). Better late than never. Self-regulation is but an oxymoron, a recipe for intractable conflicts of interest.

Finding a better solution is easier said than done. On paper, such conflicts can be made to disappear by requiring the media to forgo profits any time it claims to act in the public interest. But for print, how practical is it to allocate profits among stories published together? Just rules are hard to write.

In this world indeed justice may find itself in conflict with truth.

Let us go back to photographs. We know digital ones are not only framed but often retouched. Truth demands "categorizing photos as either altered or not altered". Steve Lohr tells us that in Europe this proposal is being pushed by "feminist legislators in France, Britain and Norway" as women come to believe their own bodies to be debased at the sight of so many ideal models (****).

Surely hiding the truth from one's audience deceives it. But wouldn't truth labels be "too blunt an approach"? If I use image processing techniques to enhance the contrast and remove the blurring caused by amateur handling, am I altering the picture when in fact I am restoring it? Unfair.

For "Dr. Farid and Eric Kee [...] at Dartmouth", justice requires nuance. They propose "a software tool for measuring how much fashion and beauty photos have been altered" on a 1-to-5 scale. In this more liberal perspective, will not it be easy to distinguish restoration from alteration? Would not Craigslist be a curmudgeon were it to complain about the subtle swipes of the New York Times?

Truth is no enemy of nuance but can a machine be the judge? It would be contrary to justice. Innocents caught in error would have no recourse, the flaw of the first HADOPI law, struck down by the French Constitutional Council. Meanwhile human reflexivity would advantage the criminals, the Google dilemma. To be just, its ranking algorithm must be transparent but the more transparent it becomes, the easier it is to subvert it.

Let then justice be dispensed by human beings, let trials bring out the whole truth. In Judge Rakoff's words quoted by John Gapper (*****), "there is an overriding public interest in knowing the truth", based on "cold, hard, solid facts". This can only aligned truth and justice. Where is the problem?

It happens justice depends on a very down to earth consideration. Money. "The SEC lacks the funding to contest many big cases in court", John Gapper remarks apropos the party Judge Rakoff accuses of "confin[ing the truth] to secretive, fearful whispers". It is therefore more efficient to settle a case, even if, to be practical, justice has to trump truth.

"This, however, is a counsel of despair". For if it is negotiable, justice becomes a cost of doing business and enough money buys one justice, reflexivity at its worst. The consent order written by the Federal Trade Commission in agreement with Facebook to improve on its privacy practices (1) goes farther. Armed with well documented charges, the FTC extracts not even a fine, let alone a condamnation, only a promise to be good.

What to do then? Were not laws on sale, the remedy would be to reconsider what machines are good for. Not to judge, but to enforce. Jonathan Zittrain pointed it out, Amazon proved it.

I am no expert in financial services. But how hard is it to force media to flag content it claims to be in the public interest and, on electronic devices at least, to strip the corresponding pages of pay walls, ad displays and reader data acquisition? Similarly, at very little cost to itself, the FTC could impose true privacy by design on Facebook to stop its personal data piracy (2). Let the latter bear the retrofit charges.

No panacea, mechanisms can and will be broken even in the face of the law. The DMCA has not stopped copyright piracy (3). But the very scale which favors Facebook makes its breaking a mechanism easier to spot and punish than when dealing with myriads of decentralized pirates.

Mechanisms cannot deliver justice, but the truth is they can turn promises which only bind those who believe in them into unescapable facts.

Philippe Coueignoux

• (*) ......... Craigslist Used in Deadly Ploy to Lure Victims in Ohio, by Erica Goode (New York Times) - Dec 2, 2011
• (**) ....... British Inquiry Told Hacking Is Worthy Tool, by Sarah Lyall (New York Times) - Nov 30, 2011
• (***) ..... Editors accused on hacking, by Salamander Davoudi, Ben Fenton and Helen Warrell (Financial Times) - Nov 30, 2011
• (****) ... Retouched Or Not? A Tool to Tell, by Steve Lohr (New York Times) - Nov 29, 2011
• (*****) . Judge Rakoff is just doing his job, by John Gapper (Financial Times) - Dec 1, 2011
• (1) for more details, see the call for public comment, the consent itself and the complaints behind it
• (2) a self-interested statement, as I claim to have invented such a software architecture
• (3) for more details, see the references for my lecture on digital distribution